Citation NR: 9611438
Decision Date: 04/25/96 Archive Date: 05/09/96
DOCKET NO. 94-33 657 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for a bilateral ear
disability, to include hearing loss as secondary to
service-connected hyperthyroidism with exophthalmos.
2. Entitlement to an increased evaluation for
hyperthyroidism with exophthalmos, currently rated 30 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. E. Smith, Counsel
INTRODUCTION
The veteran had active military service from June 1964 to
June 1966 and from May 1967 to April 1974.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a November 1992 rating action of the
Department of Veterans Affairs (VA) Buffalo, New York
Regional Office (RO), which denied the veteran an increased
rating for his service-connected hypothyroidism with
exophthalmos and service connection for a bilateral ear
disability, to include hearing loss, as secondary thereto.
In April 1994, the veteran appeared and offered testimony
before the undersigned member of the Board then sitting at
the RO. A transcript of that hearing testimony is contained
within the veteran's claims file. At this hearing, the
veteran presented testimony indicating that, on an alternate
basis, he was seeking service connection for a hearing loss
as directly related to exposure to acoustic trauma in
service. The Board observes that the RO, by a rating action
date in October 1974, denied the veteran entitlement to
service connection for a bilateral hearing loss attributable
directly to service. Since the RO's denial of service
connection for hearing loss disability, on a direct basis,
the regulation governing their definition of when a hearing
loss disability exists was implemented and then amended.
Based on the regulatory changes, the veteran's claim of
service connection for a hearing loss on a direct basis,
raised at his April 1994 hearing, would be a new claim rather
than a petition to reopen. See Spencer v.Brown 4 Vet.App 283
(1993). It is thus referred to the RO for appropriate
action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in failing
to find that he has current ear disabilities and worsening
hearing as a residual of radioactive iodine treatment
prescribed for his service-connected hyperthyroidism.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991, amended by Supp. 1995), has reviewed and
considered all of the evidence and material of record in the
veteran's claims file. Based on its review of the relevant
evidence in this matter and for the following reasons and
bases, it is the decision of the Board that the appellant has
not met the initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
the claim of entitlement to service connection for a
bilateral ear disability, to include hearing loss as
secondary to his service-connected hyperthyroidism is well
grounded.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the instant appeal with respect to the issue of secondary
service connection for a bilateral ear disability with
hearing loss has been obtained by the RO.
2. A cause-and-effect relationship between a
service-connected disease or injury and the veteran's current
bilateral ear disability and hearing loss has not been
demonstrated.
CONCLUSION OF LAW
The veteran's claim that his bilateral ear disabilities, to
include hearing loss, are due to and/or the result of his
service-connected hyperthyroidism is not warranted.
38 U.S.C.A. § 5107(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant has the initial burden to establish that he has
submitted a well-grounded claim. Once he has done so, the
burden shifts to the VA to assist the appellant in the
development of his claim. 38 U.S.C.A. § 5107(a); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).
The VA benefits system requires more than an allegation; a
claimant must submit supporting evidence. Furthermore, the
evidence must justify a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609 (1992). The quality and quantity of the
evidence required to meet the statutory burden of necessity
will depend upon the issue presented by the claim. Where the
issue is factual in nature, e.g., whether an incident or
injury occurred in service, competent lay testimony,
including a veteran's sole testimony, may constitute
sufficient evidence to establish a well-grounded claim under
§ 5107(a). Cartwright v. Derwinski, 2 Vet.App. 24 (1991).
However, where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is "plausible" or "possible" is
required. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A
claimant would not meet this burden merely by presenting lay
testimony, including his own, because laypersons are not
competent to offer medical opinion. Espiritu v. Derwinski,
2 Vet.App. 492 (1992). Consequently, lay assertions on
medical causation cannot constitute evidence to render a
claim well grounded under § 5107(a); if no cognizable
evidence is submitted to support a claim, the claim cannot be
well grounded. Tirpak, 2 Vet.App. at 611. If the claim is
not well grounded, the claimant cannot invoke the VA's duty
to assist in the development of the claim. 38 U.S.C.A.
§ 5107(a); Rabideau v. Derwinski, 2 Vet.App. 141 (1992).
With respect to the claim that the veteran has bilateral ear
disabilities and hearing loss secondary to his
service-connected hyperthyroidism, the veteran argues that
these disabilities are a result of radioactive iodine
treatment prescribed for his hyperthyroidism. In this
regard, the veteran testified at his April 1994 personal
hearing on appeal that he believed that on two occasions,
blockage of his Eustachian tube occurred as a result of scar
tissue inside his throat formed by radioactive iodine
treatment. He further testified that an opinion as to the
relationship between this scar tissue and his ear
disabilities was proffered to him by a physician "off the
record." In his substantive appeal, the veteran further
argued that this damage to his Eustachian tube prevented his
inner ear from draining and caused it to rupture. He added
that since the rupture, his hearing has been getting
progressively worse.
The Board observes that the post service clinical record is
replete with clinical findings and references to ear problems
involving scarring of the tympanic membrane, decreased
bilateral hearing acuity, Eustachian tube dysfunction, left
ear tympanosclerosis, otitis media and indications that the
veteran underwent a right ear mastoidectomy in April 1993
following findings of a right ear cholesteatoma. At no
point, however, is it suggested in the clinical record that
any of these disabilities are related to the veteran's
service-connected hyperthyroidism or treatment provided
therefor.
A VA examination was requested in September 1992 for purposes
of determining whether the veteran's ear disabilities were
related to his hyperthyroidism as he contends. The examining
physician noted the veteran's past treatment with radioactive
iodine in service and subsequent thereto. Following
objective examination of the veteran's ears, chronic
bilateral secretory otitis was diagnosed. The examiner
concluded that the veteran was post radiation radioactive
iodine to the thyroid times two. He added that he could find
no relationship between the veteran's thyroid status and his
ears at the present time.
Based upon the foregoing, the Board finds that there is no
clinical evidence which tends to link or associate the
veteran's various bilateral ear disabilities and hearing loss
with his service-connected hyperthyroidism with exophthalmos.
The only evidence which asserts such a relationship consists
of the contentions of the veteran. However, the veteran's
hypothesizing as to the etiology of his current ear and
hearing problems is not credible, particularly if not
supported by any medical authority. Hyder v. Derwinski,
1 Vet.App. 221 (1991). Lay assertions of medical causation
do not render a claim for secondary service connection well
grounded. Jones v. Brown, 7 Vet.App. 134 (1994).
With respect to the veteran's testimony as described above,
we would also note that hearsay medical evidence as
transmitted by a layperson cannot be sufficient to render a
veteran's claim as well grounded, as a connection between
what a physician said and a layperson's account of what he
reportedly said is simply too attenuated and inherently
unreliable to constitute medical evidence. Robinette v.
Brown, 8 Vet.App. 69 (1995).
Since the law requires that the veteran submit competent
medical evidence establishing that a claim is well grounded
and no such evidence has been presented to the Board in this
case, the veteran's claim is not well grounded and thus, must
be denied.
Although where claims are not well grounded, VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to his claim, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his application. This obligation depends upon the particular
facts of the case and the extent to which the Secretary of
the Department of Veterans Affairs has advised a claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette, supra.
In this case, the RO fulfilled its obligation under § 5103(a)
in the January 1994 statement of the case in which the
appellant was informed that the reasons for the denial of his
claim was that there was no evidence of a causal relationship
between treatment for his service-connected hyperthyroidism
and his current complaints of ear disability and hearing
loss. Furthermore, by this decision, the Board has informed
the appellant of the evidence which is lacking and that is
necessary to make his claim well grounded.
ORDER
The claim of entitlement to service connection for a
bilateral ear disability with hearing loss as secondary to
hyperthyroidism is denied.
REMAND
In April 1994, the veteran was afforded a VA examination for
hyperthyroidism. The examination resulted in a diagnosis of
hypothyroidism with the examiner noting that while in the
past, the veteran had an overactive thyroid gland, he now had
an underactive thyroid gland due to excessive radioactive
iodine treatment. The veteran has established service
connection for hyperthyroidism with exophthalmos, rated
30 percent disabling under Diagnostic Code 7900 of VA's
Schedule for Rating Disabilities from July 6, 1979. The
diagnostic code for hypothyroidism is Code 7903. The
statement of the case issued in January 1994 cited the
criteria for rating hyperthyroidism under Diagnostic
Code 7900. A supplemental statement of the case, however,
following the veteran's April 1994 VA examination was not
provided to him following development of this additional
evidence pursuant to the provisions of 38 C.F.R. § 19.31.
On the occasion of the veteran's hearing on appeal, the
veteran testified that he suffered from fatigability,
irritability, anxiety, weight changes and problems with
double vision. It was also noted that he was receiving
outpatient treatment, including medications, on an ongoing
basis. In view of the development required and the inherent
delay that will be occasioned by the Board's action in this
matter, further appellate consideration will be deferred and
the case is REMANDED to the RO for the following actions, to
include a current VA examination:
1. The veteran should be requested to
identify all recent sources of medical
treatment received by him for his thyroid
disorder. Copies of the medical records
from all sources he identifies (not
already in the claims folder) should then
be obtained and added to the claims
folder.
2. The RO should schedule the veteran for
an examination by an appropriate
specialist for the purpose of determining
the current severity of the residuals of
his thyroid disorder. Examination should
be performed in accordance with the
guidelines set forth in Chapter 12 of the
VA's Physician's Guide for Disability
Evaluation Examinations. The scope of the
examination should be broad enough to
cover all conditions attributable to
thyroid dysfunction which are suggested by
the veteran's complaints, symptoms or
findings at the time of examination.
Examinations by other specialists should
be made where indicated. Tests commonly
performed in the assessment of a thyroid
patient should be done, including
measurement of the hormones T3 and/or T4.
Any significant impairment affecting the
eyes, sympathetic nervous system and/or
cardiovascular system should be identified
and described. The claims folder should
be made available to the examiner prior to
the examination.
3. After the above development has been
completed, the RO should review the
evidence and determine whether the
veteran's claim may now be granted. If
the determination remains adverse to the
veteran, he and his representative should
be furnished a supplemental statement of
the case which summarizes the pertinent
evidence, fully cites the applicable legal
provisions and reflects detailed reasons
and bases for the decision reached. If
hypothyroidism is diagnosed on the VA
examination, the criteria for rating this
disorder under Diagnostic Code 7903 should
be cited and its applicability discussed.
The veteran and his representative should be given the
opportunity to respond thereto. Thereafter, the case should
be returned to the Board for further appellate consideration,
if otherwise in order, following appropriate appellate
procedures. The purpose of this REMAND is to further develop
the record and ensure due process of law. The Board does not
intimate any opinion, either factual or legal, as to the
ultimate disposition warranted in this case. No action is
required of the veteran until he receives further notice.
EUGENE A. O’NEILL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Notice of Appellate Rights: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit or benefits sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice of
the decision, provided that a notice of disagreement
concerning an issue which was before the Board was filed with
the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
Section 402 (1988). The date that appears on the face of
this decision constitutes the date of mailing and a copy of
this decision that you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board's decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1995).